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2012 DIGILAW 114 (ORI)

Rama Chanda Pati v. State of Orissa

2012-03-01

D.K.SAHU

body2012
ORDER Dr. D.K.SAHU, MEMBER (JUDICIAL) - The applicant retired from Govt. service as a senior clear on 30.04.2011 on attaining the age of superannuation. Before few days of his retirement, i.e. on 10.04.2001 a departmental proceeding was instituted against him. That continued after his retirement. The Collector, as the disciplinary authority of the applicant after his retirement, imposed penalty of reduction of 20% of pension under order at Annexure-2. The applicant preferred an appeal. The appellate authority in his order dated 16.03.05 at Annexure-3 set aside the order of the Collector, but remitted the matter to the disciplinary authority to dispose of the proceeding in accordance with law. Thereafter, the Collector issued a notice dated 27.06.2005 at Annexure-4 calling for an explanation from the applicant as to why the offence committed by him should not be dealt under Rule 15 of OCS (CCA) Rules, 1962 for infliction of major penalties as per rule. The applicant was getting Rs. 2400/- per month as provisional pension, but that has been withheld. So, he made a representation at Arulexure-5 dated 30.8.05 for payment of provisional pension. But the respondents issued letter dated 06.09.2005 at Annexure-6 reducing the provisional pension to Rs. 1275/- + T.I. per month. The disciplinary proceeding has not yet attained its finality. The applicant has thus filed this O.A. to direct the respondents to pay the provisional pension of Rs.2400/- per month, which he was earlier receiving and to quash the order at Annexure-6. 2. A written counter has been filed by respondent Nos. 2 and 3 admitting that the applicant was getting provisional pension of Rs.2400/- upto September 2004. But as the charges against the petitioner were grievous in nature, the Collector; Dhenkanal ordered that the petitioner should be given provisional pension at the minimum of Rs. 1275/- + T.I. per month till finalization of the departmental proceeding. 3. We have heard the learned counsel for both sides and perused the pleadings, so, also the documents annexed thereto. 4. At the very outset it is observed that the Collector, Dhenkanal exceeds the fundamental principle of service law of O.C.S. (CCA) Rules 1962 and OCS (Pension) Rules 1992 for the reasons stated above. While the applicant was in service a departmental proceeding was instituted against him on 10.04.2001. He retired from Govt. service on 30.04.2001 on attaining the age of superannuation. While the applicant was in service a departmental proceeding was instituted against him on 10.04.2001. He retired from Govt. service on 30.04.2001 on attaining the age of superannuation. After retirement the jural relationship of employer and employee ceases, but by a legal friction in accordance with Sub-rule (2) of Rule 7 of OCS (Pension) Rules 1992 the proceeding, continues. In that case if the charges against the Govt. servant are established no penalty, as prescribed under Rule 13 of O.C.S. (CCA) Rules, 1962 can be imposed by the disciplinary authority, but the Govt. under Sub-rule (l) of Rule 7 of O.C.S. (Pension) Rules 1992, can pass order for reduction or withhold of pension, gratuity or both. Thus, the Collector, who was the disciplinary authority of the applicant while in service had no power to pass an order as at Annexure-3 towards reduction of pension of the applicant. To connote, after retirement of the applicant the Collector became functus officio to impose any penalty. 5. The appellate authority, i.e. the R.D.C., Sambalpur in his order held that the order of the Collector was void, he has considered the fact that the Collector was not empowered to reduce the pension, still he remitted the matter to the Collector. He could have, any, should have placed the matter before the Govt. for taking action under Rule 7(1) of OCS (Pension) Rules 1992. 6. The provisional pension of the applicant has been fixed at Rs. 2400/- per month in accordance with the last pay drawn by him. There is no provision in the pension Rules to reduce the provisional pension pending a disciplinary proceeding, irrespective of the gravity of the charge, be it in departmental or criminal proceeding. So the Collector had no authority to reduce the provisional pension, which has been paid to the applicant in 'accordance with the Rules basing on his last pay drawn. Thus, the impugned order at Annexure-6 reducing the provisional pension of the applicant from Rs. 2400/- to Rs. 1275/- + T.I. is an arbitrary action, may be construed mala fide one, which is not sustainable and is thus quashed. 7. In the circumstances, the respondent-Collector is directed to pay the applicant the provisional pension of Rs. 2400/- with T.I. per month, pending finalization of proceeding under Rule 7 of OCS (Pension) Rules 1992 which has been paid to him previously. 7. In the circumstances, the respondent-Collector is directed to pay the applicant the provisional pension of Rs. 2400/- with T.I. per month, pending finalization of proceeding under Rule 7 of OCS (Pension) Rules 1992 which has been paid to him previously. The differential amount of pension be calculated and be paid to him, within three months from communication of this order, thus failing which the differential amount shall carry interest at the rate of 9% per annum from today, till its payment and the interest can be realized from the employee or officers, who would be responsible for delay. 8. The O.A. is disposed of accordingly. No order as to cost.